Avelar v. HC Concrete Constr. Grp.

LUIS AVELAR and MATEO GOMEZ, individually and on behalf of all similarly-situated persons, Plaintiffs, v. HC CONCRETE CONSTRUCTION GROUP, LLC, AND JON HARRIS, Defendants.

No. 3:22-cv-00292

United States District Court, M.D. Tennessee, Nashville Division

December 22, 2022

MEMORANDUM

ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

Before the court is the Motion for Conditional Certification of This Matter as a Collective Action and Approval of 29 U.S.C § 216(b) Notice (“Certification Motion”) (Doc. No. 15) filed by plaintiffs Luis Avelar and Mateo Gomez. As set forth herein, the motion will be granted in part and denied in part.

I. FACTS AND PROCEDURAL BACKGROUND

A. The Pleadings

On April 22, 2022 the plaintiffs filed their Collective and Class Action Complaint on behalf of themselves individually and “all others similarly situated.” (Doc. No. 1, at 1.) They seek to bring a collective action under the Fair Labor Standards Act (“FLSA”) based on alleged violations of that statute, as well as a class action under Rule 23 of the Federal Rules of Civil Procedure, asserting state law claims for fraud, unjust enrichment, and conversion, against defendants HC Concrete Construction Group, LLC (“HC Concrete”) and its owner, Jon Harris.

More specifically, as relevant to their FLSA claims and the Certification Motion, the plaintiffs allege that HC Concrete “depends on the labor of several hundred hourly-paid construction workers, including Plaintiffs, who are given various job titles including foremen, carpenters, and rodbusters,” and that these hourly workers are “purposefully misclassif[ied] as ‘independent contractors' in order to deprive them of the overtime pay to which they are lawfully entitled under the FLSA, as well as other critical benefits and protections to which they are entitled” under federal and state law. (Doc. No. 1 ¶¶ 4-5.) The plaintiffs bring this lawsuit on behalf of themselves and “other current and former hourly construction workers who were misclassified as ‘independent contractors,'” “pursuant to the collective action provisions of the FLSA,” 29 U.S.C. § 216(b), to redress violations of their right to overtime wages as provided by 29 U.S.C. § 207(a).

Named plaintiff Luis Avelar was employed by HC Concrete from February 2021 through March 2022. (Doc. No. 1 ¶ 10.) Plaintiff Mateo Gomez was employed by HC Concrete as an hourly worker from September 2021 through April 2022. (Id. ¶ 14.) Avelar and Gonzalez allege that they regularly worked ten or more hours per day, six days per week, and rarely, if ever, were able to take an uninterrupted thirty-minute lunch break. (Doc. No. 1 ¶ 48.) The plaintiffs allege that, because the defendants purposefully misclassified them as “independent contractors” who fell outside the protections of the FLSA, they were deprived of overtime compensation to which they were entitled under the FLSA. (Id. ¶¶ 11, 15.) The plaintiffs also allege that all other hourly paid construction workers, including those who have filed Consents to join this lawsuit (seventeen to date, in addition to the two named plaintiffs) worked similar schedules-typically ten or more hours per day, six days per week, only rarely taking uninterrupted half-hour lunch breaks-and were similarly misclassified as independent contractors and deprived of overtime compensation to which they were entitled under the FLSA. (Id. ¶¶ 37-38, 49, 72.) The plaintiffs allege that, at all relevant times, they and other similarly situated individuals were “employees” of HC Concrete and Jon Harris, as that term is defined by 29 U.S.C. § 203(e)(1); they were paid an hourly wage with no overtime compensation; they regularly worked more than forty hours per week; they were covered by the minimum wage and overtime provisions of the FLSA, 29 U.S.C. §§ 206, 207; and they were deprived of overtime pay to which they were entitled. (Doc. No. 1 ¶¶ 18, 19.)

HC Concrete is a Tennessee limited liability company with its principal place of business in Nashville, Tennessee. (Id. ¶ 20.) The Complaint contains allegations that, if true, would establish that both HC Concrete and defendant Harris qualify as “employers” for purposes of the FLSA and that the defendants together operated an enterprise engaged in interstate commerce with an annual gross sales volume in excess of $500,000. (Id. ¶¶ 24-28, 30-34.) The plaintiffs allege that the court has subject matter jurisdiction over the FLSA claims and that venue in this district is proper. (Id. ¶¶ 35-36.)

In support of their claim that they were actually employees, rather than independent contractors, the plaintiffs specifically allege that: (1) the defendants exercised control over the plaintiffs' and other hourly employees' work schedules, supervised their work, and controlled the method and manner in which they performed work; (2) neither the plaintiffs nor similarly situated hourly employees had any opportunity for profit or loss based on their skill or the outcome of any project on which they worked; (3) they were employed full-time; (4) they had a continuing relationship with the defendants, rather than one that ended with the conclusion of a particular project on which they were working; (4) they were not engaged in highly skilled work; (5) the work they performed was “an integral part of the Defendants' routine daily construction operation”; and (6) the defendants provided all equipment and materials necessary for the plaintiffs to perform their jobs. (Id. ¶¶ 39-46.)

The defendants have filed an Answer denying that the plaintiffs or any other independent contractors were improperly classified and denying that the plaintiffs are owed overtime compensation. The defendants admit that they employed some individuals as employees rather than independent contractors and that these employees were covered by the FLSA and, as such, are entitled to overtime compensation. The defendants admit generally that HC Concrete is an “employer” covered by the FLSA, that the court has subject matter jurisdiction over the plaintiffs' FLSA claims, and that venue in this jurisdiction is appropriate. They deny violations of the FLSA and further deny that this case is appropriate for treatment as a collective action. (Doc. No. 11.)

B. The Certification Motion

The plaintiffs' Certification Motion requests that the court “oversee the joinder of additional opt-in plaintiffs” and “conditionally certify this matter as a collective action.” (Doc. No. 15, at 1.) In particular, they request an order:

(1) conditionally certifying this case to proceed as a collective action under the FLSA on behalf of all current and former hourly-paid construction workers who worked for HC Concrete, and who were classified as independent contractors (the “putative opt-in plaintiffs”) at any time since July 28, 2019 (three years prior to the date the plaintiffs filed the Certification Motion);

(2) requiring the defendants to immediately provide plaintiffs' counsel with the names, last known home addresses, email addresses, and telephone numbers of all putative opt-in plaintiffs (which includes additional, reasonable and diligent steps to locate and provide to plaintiffs' counsel the actual last known home addresses and email addresses for all putative opt-in plaintiffs, including those in which defendants' records list HC Concrete's office address as the home address or contain no address at all);

(3) directing plaintiffs' counsel to issue plaintiffs' proposed Notice and Consent forms to all putative opt-in plaintiffs by mail and email (in both English and Spanish), which, among other things, would notify the putative opt-in plaintiffs that they have ninety days within which to submit signed consent to join the lawsuit;

(4) requiring the defendants to internally post plaintiffs' proposed Notice and Consent forms (in both English and Spanish) prominently at HC Concrete's office location and at all of HC Concrete's job sites during the entire proposed ninety-day opt-in period;

(5) requiring the defendants to enclose the Notice and Consent forms (in both English and Spanish) with the next regularly scheduled paycheck for putative opt-in plaintiffs who are currently working for the defendants;

(6) directing plaintiffs' counsel to issue the proposed Reminder Notices to all putative opt-in plaintiffs who have not opted in the lawsuit or otherwise responded during the first forty-five days of the ninety-day opt-in period;

(7) directing the defendants to enclose the Reminder Notice (in both English and Spanish) with the next regularly scheduled paycheck for putative opt-in plaintiffs who are currently working for the defendants and who have not opted into the lawsuit or otherwise responded during the first 45 days of the 90-day opt-in period; and (8) tolling the statute of limitations with respect to the FLSA claims of the putative opt-in plaintiffs from July 28, 2022, to the close of the period during which the putative opt-in plaintiffs may join this action.

(See Doc. No. 15, at 3.) With their Certification Motion, the plaintiffs filed their proposed Notice and Consent forms, proposed Reminder Notice, and the Declarations of Luis Avelar, Harding Blackman, and Gena Wray.

In their Memorandum in support of the Certification Motion, the plaintiffs acknowledge that “a few” of the defendants' hourly construction workers were classified by HC Concrete as employees, but they maintain that most including the plaintiffs and the putative opt-in plaintiffs, were improperly classified as independent contractors. The independent contractors, moreover, allegedly performed work identical to that of the hourly workers who were classified as employees. (Doc. No. 16, at 3; Doc. No. 15-3, Avelar Decl. ¶¶ 3-5; Doc. No. 15-4, Blackman Decl. ¶¶ 5-7; Doc. No....